NATIONAL SECURITY PROJECT AMERICAN CIVIL LIBERTIES UNION December 9,2008 Deborah Waller, Paralegal Specialist Office ofthe Inspector General Department ofJustice 950 Pennsylvania Avenue, N.W., Room 4726 Washington, D.C. 20530-0001 FOIAIPA Mail Referral Unit AMERICAN CIVIL LIBERTIES UNION FOUNDATION Department ofJustice NATIONAL OFFICE Room 115 125 BROAD STREET, 18TH FL. NEW YORK, NY 10004-2400 LOC Building T/ 2 12. 54 9.2500 Washington, D.C. 20530-0001 WWW.ACLU.ORG OFFICERS AND DIRECTORS Elizabeth Farris, SUSAN N. HERMAN PRESIOENT Supervisory Paralegal Office ofLegal Counsel ANTHONY D. ROMERO EXECUTIVE OIRECTOR Room 5515,950 Pennsylvania Avenue, NW Department ofJustice RICHARD ZACKS TREASURER Washington, DC 20530-0001 Information Officer Office ofFreedom ofInformation and Security Review Directorate for Executive Services and Communications FOIA/Privacy Branch 1155 Defense Pentagon, Room 2C757 Washington, D.C. 20301-1155 Information and Privacy Coordinator Central Intelligence Agency Washington, D.C. 20505 Office ofInformation Programs and Services AlISS/IPS/RL U.S. Department ofState Washington, D.C. 20522-8100 Re: REQUEST UNDER FREEDOM OF INFORMATION ACT / Expedited Processing Requested Attention: This letter constitutes a request ("Request") pursuant to the Freedom ofInformation Act ("FOIA"), 5 U.S.C. § 552 et seq., the Department ofDefense implementing regulations, 32 C.F.R. § 286.1 et seq., the Department ofJustice implementing regulations, 28 C.F.R. § 16.1 et seq., the Department ofState implementing regulations, 22 C.F.R. § 171.1 et seq.,and the Central Intelligence Agency implementing regulations, 32 C.F.R. § 1900.1 et seq. The Request is submitted by the American Civil Liberties Union Foundation and the American Civil Liberties Union (collectively, the "ACLU,,).l AMERICAN CIVIL LIBERTIES UNION FOUNDATION I. Requested Records Requesters seek the release ofagency records as described in the numbered paragraphs below: 1. Any indices, tables, or logs that list or otherwise identify legal memoranda produced by the Office ofLegal Counsel ("OLC") after September 11, 2001, relating to the detention, interrogation, treatment, or prosecution ofsuspected terrorists, or the transfer ofsuspected terrorists to foreign countries, including any indices, tables; or logs produced in response to the subpoena issued by the Senate Judiciary Committee to Attorney General Michael Mukasey on October 21,2008, a copy ofwhich is attached hereto as Exhibit A ("October 2008 Subpoena"). 2. All legal memoranda produced by the OLC after September 11, 2001, relating to the detention, interrogation, treatment, or prosecution of suspected terrorists, or the transfer ofsuspected terrorists to foreign countries, including but not limited to: A. A legal memorandum dated October 2001 from John C. Yoo, Deputy Assistant Attorney General ofthe OLC, to Alberto R. 1 The American Civil Liberties Union Foundation is a 26 U.S.C. § 501(c)(3) organization that provides legal representation free ofcharge to individuals and organizations in civil rights and civil liberties cases, and educates the public about the civil liberties implications ofpending and proposed state and federal legislation, provides analyses of pending and proposed legislation, directly lobbies legislators, and mobilizes its members to lobby their legislators. The American Civil Liberties Union is a separate non-profit, 26 U.S.C. § 50 1(c)(4) membership organization that educates the public about the civil liberties implications ofpending and proposed state and federal legislation, provides analysis ofpending and proposed legislation, directly lobbies legislators, and mobilizes its members to lobby their legislators. 2 Gonzales, Counsel to the President, and William Haynes II, General Counsel for the Department ofDefense ("DOD"), regarding authority for the use ofmilitary force to combat terrorist activities within the United States. See October 2008 Subpoena, Ex. A(I)(C); B. A legal memorandum dated November 6, 2001 from Patrick F. Philbin, Deputy Assistant Attorney General ofthe OLC, to Alberto R. Gonzales, possibly regarding the scope ofthe President's Commander-in-Chiefpower to use military commissions to try terrorists. See Memorandum from John C. Yoo to William J. Haynes II at 4 n.5 (Mar. 14, 2003) ("March 2003 Y00 Memorandum"); C. A legal memorandum dated December 21,2001 from AMERICAN CIVIL LIBERTIES UNION FOUNDATION John C. Yoo to William J. Haynes II regarding possible criminal charges against an American citizen who was a member ofthe Al Qaeda terrorist organization or the Taliban militia. See March 2003 Y00 Memorandum at 23 n.23; D. A legal memorandum or letter dated January 14,2002 from John C. Yoo and Robert J. Delahunty to William H. Taft IV, Legal Advisor for the Department ofState, regarding prosecution for conduct against Al Qaeda and Taliban members under the War Crimes Act. See March 2003 Y00 Memorandum at 34; E. A legal memorandum dated February 1, 2002 from James C. Ho, Attorney-Advisor for the Office of Legal Counsel, to John C. Y00 regarding possible interpretations ofCommon Article 3 of the 1949 Geneva Convention Relative to the Treatment of Prisoners ofWar. See March 2003 Yoo Memorandum at 49 n.54; F. A legal memorandum dated March 13,2002 from Jay S. Bybee to William J. Haynes II regarding the President's power as Commander in Chiefto transfer captured terrorists to the control and custody offoreign nations. See March 2003 Y00 Memorandum at 6; G. A legal memorandum dated June 27,2002 from John C. Yoo to Daniel J. Bryant regarding the applicability of 18 U.S.C. § 4001(a) to military detention ofUnited States citizens. See March 2003 Yoo Memorandum at 6 n.8; H. A legal memorandum or letter dated July 22, 2002 from John C. Y00 to Alberto R. Gonzales regarding the applicability of 3 the Convention Against Torture. See March 2003 Y00 Memorandum at 47; I. A legal memorandum dated March 18, 2004 prepared for Alberto R. Gonzales regarding protected persons in occupied Iraq. See October 2008 Subpoena, Ex. A(I)(A); J. Any legal memorandum concerning applicability ofthe Fourth Geneva Convention, including Article 49, in Iraq, including any legal memorandum dated March 19,2004. See October 2008 Subpoena, Ex. A(I)(B). 3. All records issued after September 11, 2001 by the Defense Department, Justice Department, State Department, or CIA, ill which any ofthose agencies, or personnel at those agencies, sought guidance, advice, AMERICAN CIVIL LIBERTIES 2 UNION FOUNDATION or analysis from the White House with respect to the detention, interrogation, treatment, or prosecution ofsuspected terrorists, or the transfer ofsuspected terrorists to foreign countries, including but not limited to: A. Any record sent by the CIA to the White House in June 2003 seeking guidance, advice, or analysis from the White House with respect to the interrogation ofprisoners in the custody ofthe CIA. See Joby Warrick, CIA Tactics Endorsed in Secret Memos, Wash. Post, Oct. 15, 2008; B. Any record sent by the CIA to the White House in June 2004 seeking guidance, advice, or analysis from the White House with respect to the interrogation ofprisoners in the custody ofthe CIA. See Joby Warrick, CIA Tactics Endorsed in Secret Memos, Wash. Post, Oct. 15,2008. 4. All records, including directives and memoranda, that were issued after September 11, 2001 by the White House to the Defense Department, Justice Department, State Department, or CIA, or to specific personnel at those agencies, and that relate to the detention, interrogation, treatment, or prosecution ofsuspected terrorists, or the transfer ofsuspected terrorists to foreign countries, including but not limited to: A. Any memorandum issued by the White House to the CIA in June 2003 relating to the interrogation ofprisoners in the 2 The term "White House" includes the Executive Office ofthe President, the Office of the President, the White House Office, the Office ofCounsel to the President, the National Security Council, the Office ofthe Vice President, the Cabinet, as well as any governmental agency, council, or office that advises the President or the Vice President as to the legality of, or the authority to undertake, any executive action. 4 custody ofthe CIA. See Joby Warrick, CIA Tactics Endorsed in Secret Memos, Wash. Post, Oct. 15, 2008; B. Any memorandum issued by the White House to the CIA in July 2004 relating to the interrogation ofprisoners in the custody ofthe CIA. See Joby Warrick, CIA Tactics Endorsed in Secret Memos, Wash. Post, Oct. 15,2008. II. Application for Expedited Processing We request expedited processing pursuant to 5 U.S.C. § 552(a)(6)(E), 22 C.F.R. § 171.12(b); 28 C.F.R. § 16.5(d); 32 C.F.R. § 286.4(d)(3); and 32 C.F.R. § 1900.34(c). There is a "compelling need" for these records because the information requested is urgently needed by an organization primarily engaged in disseminating information in order to AMERICAN CIVIL LIBERTIES UNION FOUNDATION inform the public about actual or alleged Federal government activity. 5 U.S.C. § 552(a)(6)(E)(v); see also 22 C.F.R. § 171.12(b)(2); 28 C.F.R. § 16.5(d)(I)(ii); 32 C.F.R. § 286.4(d)(3)(ii); 32 C.F.R. § 1900.34(c)(2). In addition, the records sought relate to a "breaking news story of general public interest." 22 C.F.R. § 171.12(b)(2)(i); 32 C.F.R. § 286.4(d)(3)(ii)(A); see also 28 C.F.R. § 16.5(d)(I)(iv) (providing for expedited processing in relation to a "matter ofwidespread and exceptional media interest in which there exist possible questions about the government's integrity which affect public confidence"); 32 C.F.R. § 1900.34(c)(2) (providing for expedited processing when "the information is relevant to a subject ofpublic urgency concerning an actual or alleged Federal government activity"). The ACLU is "primarily engaged in disseminating information" within the meaning ofthe statute and regulations. 5 U.S.C.